Citation Nr: 0736452 Decision Date: 11/19/07 Archive Date: 12/06/07 DOCKET NO. 04-22 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from November 1993 to July 2001. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO) which denied service connection for erectile dysfunction. The veteran testified at a June 2006 Board hearing; the hearing transcript has been associated with the claims file. The Board remanded the case to the RO for further development in November 2006. Development has been completed and the case is once again before the Board for review. FINDINGS OF FACT 1. The evidence is not clear and unmistakable that erectile dysfunction pre-existed service; the presumption of soundness on entrance is not rebutted. 2. Erectile dysfunction is etiologically related to the veteran's military service. CONCLUSION OF LAW Erectile dysfunction was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a January 2002 letter, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. A November 2006 letter provided the veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was not received prior to the initial rating decision. In light of the Board's favorable decision, however, the Board finds no prejudice to the veteran in proceeding with the issuance of a decision in the present appeal despite the inadequate notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any such failure was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The RO shall address any notice defect regarding disability ratings and effective dates when effectuating the award. The veteran's service medical records, VA treatment records, and VA examinations have been associated with the claims file. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1). Until recently, the provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that a injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2007). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3- 2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre- existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the pre-existing disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the pre-existing disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2007); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined as "to make worse." Webster's II New College Dictionary (1999). Thus, after determining if there is clear and unmistakable evidence that the veteran's erectile dysfunction preexisted service, the Board will then determine whether there is clear and unmistakable evidence that the erectile dysfunction was not "made worse" or aggravated in service such that the presumption of soundness has been rebutted. The veteran's September 1993 entrance examination did not reflect any complaints, treatment, or diagnoses relating to erectile dysfunction. Service medical records show that the veteran was seen on multiple occasions in service for erectile dysfunction. He was first seen in October 1996. He reported that he was unable to maintain an erection and was unable to have an orgasm. Clinical treatment records noted that the problem had been present for one or one-and-a-half years. The veteran was assessed with erectile dysfunction/sexual function problem. It was noted that his history was atypical in that the veteran reported that he had never experienced an orgasm, but had on a few occasions noticed ejaculate or "wet dreams." Diagnostic testing did not reflect any abnormality. The veteran submitted additional medical records from his period of service dated from October 1996 to March 2000. These medical records reflect continuing treatment for erectile dysfunction in service. (See Medical Records dated October 1996, January 1998 to October 1998, and February 1999 to March 2000.) The veteran was diagnosed with erectile dysfunction which created difficulty to ejaculate and maintain erection. Clinical treatment records show that the veteran was seen in the mental health clinic for depression in conjunction with his erectile dysfunction. At that time, the veteran reported inability to ejaculate during sexual intercourse, but indicated that he was able to maintain erections for short periods of time. He reported that he did have nocturnal emissions. Service medical records also include a January 1998 consultation request, which notes a provisional diagnosis of impotence, described as inability to achieve erection. The request stated that the veteran had been seen prior to entry to service for the same problem. A July 1998 neurology note shows that the veteran was evaluated for complaints of anorgasmia, headaches, and depression. Again, it was noted that the veteran had never had an orgasm in his life. The examiner indicated as he had never evaluated anyone for anorgasmia before, and felt some discomfort in rendering an opinion. He stated that from his examination, there was no obvious neurological deficit. The examiner posed various possible causes for the veteran's anorgasmia. He stated that the veteran's depression did not seem to be the cause of his sexual dysfunction, although it may be resulting from it. February 1999 clinical treatment notes show that the veteran continued to be seen for depression and sexual dysfunction. The veteran was treated with injections of Alprostadil in November 1999. Service medical records did not include a separation examination report. In a June 2001 Transition Medical Option Statement, the veteran indicated that he desired that his medical examination be waived. During a June 2002 VA examination, the veteran complained of a history of erectile dysfunction. He reported that he never had an erection as a teenager. He first became sexually active at age 21 while in the military, in which he failed to attain an erection. He had no known episodes of ejaculation. The examiner stated that work-up was negative in the military in urology. He stated that they had tried injections, but the injections were of no help. The veteran reported that he still had no erections or ejaculations. The veteran was evaluated by Dr. J.B. for sexual dysfunction in December 2002. Dr. J.B. stated that the veteran had a lifetime history of sexual dysfunction by his account. The veteran reported that he lost his virginity at age 21. Dr. J.B. stated that although the veteran had adequate erectile function, he felt that he was not able to have erections on command. His primary complaint was that he only had nocturnal emissions and otherwise could not achieve ejaculation through intercourse. The veteran was being treated with Viagra. He was diagnosed with ejaculatory dysfunction, erectile dysfunction, and sexual dysfunction. Diagnostic tests were completed subsequent to examination. On a December 2002 follow-up examination, the veteran was referred to a sexual therapist. The veteran was being treated with Viagra at that time. Dr. J.B. stated at that time, that he would presume that the veteran did have some vascular disease given that his testosterone level was completely normal. The Board requested a VA opinion in November 2006 to determine if the veteran's had erectile dysfunction that was incurred in or aggravated by service. A VA examination was completed in conjunction with a review of the claims file in May 2007. The examiner indicated that erectile dysfunction had its onset in 2000 and was manifested by an inability to get an erection. The examiner indicated that erectile dysfunction had progressively worsened since onset. The veteran was treated with Cialis the time of the examination. The examiner opined that the most likely etiology of the veteran's erectile dysfunction was a psychological condition. The veteran was treated with oral medication, however vaginal penetration was not possible and medication was not effective in allowing intercourse. The veteran had an absence of ejaculation with etiology unknown. The examiner noted in the veteran's history that he was prescribed injections of Alprostadil in February 2000. Physical examination was normal. Testosterone testing was normal. The examiner stated that the veteran alleged that the Alprostadil injections may have contributed to erectile dysfunction, but the examiner found no evidence of any damage to his penis that would support this. The examiner opined that the veteran's erectile dysfunction first occurred in service and that it was due to psychological problems. The rational for the examiner's opinion was that the veteran was able to have erections with intercourse for five minutes while in service, but before separation in 2001 he was unable to have an erection which would enter the vagina. The examiner stated that that the present time, even with Cialis, the veteran was unable to have vaginal intercourse. He did not have ejaculations either. The Board notes that although the VA examiner indicated that the veteran's erectile dysfunction had its onset around 2000, service medical records did reflect a diagnosis of erectile dysfunction in October 1996. The VA examiner also noted that the veteran was prescribed injections of Alprostadil in February 2000; however, service medical records show that this treatment was completed in November 1999. The presumption of soundness is applicable to this case. Although a January 1998 consultation request notes that the veteran had been seen prior to entry to service for inability to achieve erection, the record does not contain other medical evidence to support this finding. The veteran reported during his June 2006 Board hearing that he was not sexually active prior to service, and that he was not seen for erectile dysfunction prior to service. Service medical records and post-service medical records show that the veteran first became sexually active at age 21 while in the military. Medical evidence of record does show that the veteran reported that he had never experienced an orgasm prior to service; however, there is no indication of diagnosed erectile dysfunction prior to service. The Board finds that the January 1998 note and the veteran's reports of inability to attain an orgasm prior to service are not enough to rebut the presumption of soundness. Pre-service treatment or diagnosis of erectile dysfunction has not been established by medical evidence of record. The earliest diagnosis of erectile dysfunction of record was in October 1996. Based on the foregoing, the Board finds that the record on appeal does not contain clear and unmistakable evidence that the veteran's erectile dysfunction pre-existed service. See Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). Thus, the veteran must be presumed sound on entrance with application of the legal criteria set forth above. The claim is accordingly, reviewed as one for service connection, rather than for service connection on the basis of aggravation, and a showing of current disability and a nexus between the current disability and service would be sufficient to establish service connection. The Board notes that the veteran has claimed that Alprostadil injections prescribed in service contributed to his current erectile dysfunction. However, competent medical evidence of record does not support this contention. The veteran has submitted various internet articles in support of this claim. The Board notes, however, that these articles do not address the facts of this particular case with a sufficient degree of medical certainty and thus, cannot be considered as competent evidence which addresses the etiology of the veteran's erectile dysfunction. See Sacks v. West, 11 Vet. App. 314 (1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996). The June 2002 VA examiner, after examination of the veteran, found no evidence of damage to his penis that would support his contention. Nevertheless, the Board finds in this case that service connection on a direct basis is warranted. Service medical records show that the veteran was diagnosed with erectile dysfunction in service. Post-service treatment records show that the veteran was seen a year after his separation from service in December 2002 for continuing problems of erectile dysfunction. Although the veteran reported in a private report dated in December 2002 that he had adequate erectile function, the record is not consistent on this point, and that examiner did provide a diagnosis of ejaculatory dysfunction, erectile dysfunction, and sexual dysfunction. Further, a May 2007 VA examination shows that the veteran has a current diagnosis of erectile dysfunction for which he continues to be treated. The May 2007 VA examiner reviewed the claims file and noted in-service findings and complaints relating to the veteran's erectile dysfunction. The examiner rendered a diagnostic impression of erectile dysfunction and opined that the veteran's erectile dysfunction first occurred in service and that it was due to unidentified psychological problems. Parenthetically, the Board notes that the veteran has established service connection for dysthymia. Although some of the dates cited by the VA examiner were different from those indicated in service medical records, the Board finds that the examiner's diagnosis of erectile dysfunction, which was rendered in conjunction with a contemporaneous examination of the veteran is probative in this case. The veteran is shown to have received treatment for erectile dysfunction in service, and continued treatment after service. The Board finds that medical evidence of record shows that erectile dysfunction was incurred in service and did not pre-exist service. Therefore, service connection for erectile dysfunction is warranted. C. Conclusion The evidence of record does not show by clear and convincing evidence that the veteran had pre-existing erectile dysfunction. The veteran has a current diagnosis of erectile dysfunction; service medical records show that the veteran was seen for erectile dysfunction in service; and the veteran continued to be seen for erectile dysfunction after service. Therefore, the Board concludes that the evidence supports a finding for service connection for erectile dysfunction. ORDER Service connection for erectile dysfunction is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs